Citation Nr: 0009150
Decision Date: 04/06/00 Archive Date: 04/12/00
DOCKET NO. 96-19 930 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to an increased rating for residuals of a
compression fracture of the T7 vertebra, currently 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Marisa Kim, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1983 to
January 1987.
In March 1994, the veteran applied for an increased rating
for service connected residuals of a compression fracture of
the T7 vertebra.
This appeal arises from November 1994 and August 1995 rating
decisions from the Seattle Washington, Department of Veterans
Affairs (VA) Regional Office (RO), that continued a
noncompensable rating for residuals of a compression fracture
of the T7 vertebra, a May 1996 rating decision that increased
the rating to 10 percent, and a January 1999 rating decision
that continued the 10 percent rating.
FINDINGS OF FACT
1. The current medical evidence shows a demonstrable
deformity of the T7 vertebral body with mild degenerative
changes and moderate to severe limitation of range of motion
of the thoracic spine.
2. The medical evidence does not show spinal cord
involvement or abnormal mobility requiring a neck brace.
CONCLUSION OF LAW
The criteria are met for an increased rating to 20 percent
for residuals of a compression fracture of the T7 vertebra.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7,
4.10, 4.40, 4.71a, Diagnostic Codes 5003, 5010, 5285 and 5291
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
In February 1994, the veteran was seen at the VA Medical
Center for complaints of back pain. The veteran reported
that he hurt his back 10 years ago and that it still hurt off
and on. The back examination was normal. The impression was
lumbosacral spine and low back pain from an old back injury.
In September 1994, the veteran received trial medications for
one month. In October 1994, the veteran complained of
chronic back pain and no relief from the medications. He
reported that his pain was getting worse. At the orthopedic
clinic, the x-ray revealed a quite prominent anterior
compression fracture of the T8 vertebra from the 1984 injury
in which a 55-gallon drum fell on top of the veteran's back.
There was no surgery, and the only physical therapy was in
1984-1985. The veteran reported no relief with the
medications. The veteran was instructed to return to the
clinic but he did not report for the next appointment.
The veteran underwent a VA examination in December 1994.
With respect to history and subjective complaints, the
veteran reported that he developed a compression fracture of
the thoracic vertebra in 1984 when a barrel from a truck fell
on him. He was treated at the Army hospital for 1 month,
placed on leave for 1 year, and then given a medical
discharge. The veteran reported that he had back pain in the
region of the fracture ever since it occurred 10 years ago.
The pain was present every day to some extent. He also had
low back pain but there had been no injury to that area. He
worked as a construction contractor. He had been taking pain
medications but the muscle relaxants upset his stomach. He
was given Tylenol #3 for pain. He reported that his main
problem was a need for pain medication. He was placed on
Amitriptyline that did not help his pain.
Physical examination in December 1994 revealed that the back
did not have any deformity except for a developmental lumbar
lordosis. There was tenderness over the T8 and 9 area to
pressure from a finger. The veteran could flex his lumbar
spine forward to 85 degrees, extend it backward to 25
degrees, bend to the right 35 degrees, and to the left 45
degrees. He stated that the pain in the region of his old
fracture prevented him from bending the lumbar spine further.
Neurologic examination of the upper extremities revealed that
deep tendon reflexes were present in all areas. The
September 1994 x-ray of the thoracic spine showed an old
compression fracture of the T8 vertebra. The lumbar spine x-
ray was negative. There was mild kyphotic configuration
within the area of the lumbar spine. The diagnoses were
status post compression fracture of the T8 vertebra from 1984
and a chronic pain problem. The reason for the continuing
pain from this injury 10 years ago was not clear to the
examiner.
In the February 1996 appeal, the veteran contended that he
was entitled to a higher rating because his back limited him
from daily activities such as work, recreation, sex,
shopping, sitting, sleeping, and driving. In the March 1997
statement, the representative alleged that the veteran
continued to suffer from chronic back pain with interrupted
sleep patterns.
The veteran underwent a VA examination in November 1997.
With respect to the veteran's history and subjective
complaints, the veteran reported constant numbing pain since
the initial injury in the military and that the symptoms were
getting progressively worse over the last 2 years. The pain
was now constant, and a numbing sensation in the middle of
his back was nonradiating at this time. The veteran was
unemployed at the present time and had been for several years
secondary to his back pain. He was self-employed in the
construction business but quit because his back pain
prevented to him performing the required work. He was unable
to find any suitable type of work. He tried truck driving
and working for his father for a while. He could not do
anything without pain or an increase in his pain. He was on
no medications at the present time because the nonsteroidals
upset his stomach. He had morning stiffness lasting 1-2
hours. Some mornings, there was no pain, and other mornings,
the pain was minimal. As the day progressed, his pain
progressed to the point where he either had to lay down on
the floor, take a hot bath, or use the hot tub. He described
the pain as constant numbing pain of 8 on a 10-point scale.
He could not bend but did squats to pick things up off the
floor. Factors that increased his symptoms were anything
that involved movement or activities of daily living such as
pushing a lawnmower, bending forward, twisting sideways, etc.
Factors that decreased his symptoms were lying flat on the
floor and use of a hot tub or hot showers. When the pain was
severe, the veteran took Motrin that seemed to take the edge
off of the pain.
Physical examination in November 1997 revealed an inability
to forward flex greater than 20 degrees and a measured
excursion from C7 to S1 of 2 centimeters in length. These
movements caused increased pain in the dorsal spine. Lateral
bending and rotation also caused increased pain. The veteran
could not flex his spine greater than 25 degrees but, with
his back straight, could squat without discomfort. The
veteran was observed to have a normal carriage, gait, and
posture. His gait was symmetric without limp. He was able
to sit down and rise from a chair without difficulty and
remove a shirt and T-shirt without difficulty. There were no
objective signs of discomfort during this observation, only
during the attempted range of motion and examination. The
diagnoses were a history of compression fracture of T7 and
chronic pain syndrome. The November 1997 x-rays of the
thoracic spine revealed a clinical history of compression
fracture of T7, and comparison was made to the September 1994
x-rays. Findings were a compression fracture of the T8
vertebral body that was slightly more compressed than on the
prior study, an overall anterior vertebral body height of
approximately 50 percent, and interval development of mild
secondary degenerative change at T8-9 level. Milder degrees
of compression at the T7 vertebral body were present and not
significantly changed. The x-ray impression was a slight
progression in the compression fracture of T8 vertebral body
without significant change and very mild compression of T7
vertebral body. Additional blood studies done in November
1997 revealed a rheumatoid factor that was negative.
The veteran underwent a VA examination in October 1998. The
examiner reviewed the veteran's claims file, medical records,
and the November 1997 VA examination report. With respect to
the veteran's history and subjective complaints, the veteran
reported that the middle of his back ached and was getting
worse over the years. The veteran denied a history of back
pain prior to an accident in Hawaii while he was on active
duty status. It took a couple of years for the veteran to
heal, and he wore a back brace for a while. The veteran
recalled a November 1984 motorcycle accident. He reported
that both injuries affected the same spot and that he never
completely recovered from either accident. The pain felt as
if someone had twisted a hot knife in his back. He reported
that he had no leg pain, that his self-treatment included
effective modalities such as use of the hot tub at home. The
modalities decreased his symptoms after a variable length of
time depending on the severity. He used non-steroidal anti-
inflammatory medications such as ibuprofen as the occasion
required. He had prescription narcotics although he could
not remember the names. He disliked taking the narcotics
because they upset his stomach. The veteran reported the
most effective treatment for pain relief was taking 2-3 beers
in order to relax while in the hot tub. The veteran had a
history of working in construction but he was barely working
now. He described running a small crew in the construction
industry but most of the time, he spent at home watching the
children, ages 2 and 3. The veteran denied any current
sporting activities or hobbies. He used a treadmill without
problems. Walking was not a problem unless it was a long
distance. He was almost always able to walk at least 100
yards, and stairs were not a problem. Other activities
occasionally caused low back pain but no leg discomfort. The
veteran stated that he could drive without difficulty unless
it was for periods greater than 2 hours. At that point, he
developed middle thoracic pain. His main complaint was that
he was unable to work because he could not lift, bend, or
climb, all activities required for gainful employment in the
construction industry.
Physical examination in October 1998 revealed that the
veteran sat with good posture during the entire examination.
He denied the use of crutches, braces, canes, etc. except for
the acute period after his injury. The veteran denied any
surgical history. The veteran stated that trying to touch
his toes was impossible. He was able to forward flex,
fingertips to his mid patella. Extension of his spine was 17
degrees, left lateral flexion was 10 degrees, right lateral
flexion was 12 degrees, and rotation was 18 degrees. Left
rotation was 15 degrees to the right. The veteran was able
to touch his chin to his chest. He had 23 degrees of
extension. He was not able to lateral flex his cervical
spine to his shoulder and attributed the stiffness to his
driving yesterday. He reported that his neck was usually not
a problem. The veteran's back was well tanned, and there
were no surgical scars. There was no asymmetry in the muscle
mass. The veteran had no visible or palpable spasm. He
complained of increased tenderness with very light palpation
over the T7 level. There were no skin changes. The veteran
had no difficulty with sitting upright during discussion
while on the examination table. He had absolutely no
complaint with his hip flexed to 90 degrees for the
examination of his dorsalis pedis and posterior tibial pulses
with his knees straight. Both pulses were strong and
symmetrical. The veteran's pelvis was level, and there was
no clinical evidence of scoliosis. His scapulae were level
as were his shoulders. The veteran was able to achieve a
recumbent position without difficulty and to sit up from a
supine position without difficulty. He had 5/5 power in his
lower extremities when distracted; however, when attention
was drawn to a specific part, he was barely able to overcome
light resistance. The veteran had 3+/5 deep tendon reflexes
for his knee jerk and Achilles. Babinski was absent
bilaterally, upper extremity deep tendon reflexes, including
biceps, triceps, and brachial radialis, were 2+/4 and were
also symmetrical. The radial pulses were also strong. The
veteran had 5/5 upper extremity power when distracted;
however, he complained of middle back pain when specifically
asked to overcome resistance with abduction and adduction
with his shoulders and flexion of his elbows. From a supine
position for straight leg raise, the veteran was able to
achieve 20 degrees of hip flexion bilaterally before
complaining of severe low back pain and hamstring tightness.
On passive straight leg raise, the examiner was able to
achieve 40 degrees before the veteran complained of low back
pain and hamstring tightness. Review of the x-ray report
revealed a T7 compression fracture with an anterior wedge and
some degenerative changes. These observations were by report
only, including films taken in November 1997 and in 1994.
According to the report, there was some increase in
degenerative changes over that time. The veteran reported
that his back was getting worse slowly and that he was not
able to work. The examiner ordered new x-rays of the
anterior posterior and lateral and cone down at the T7 area
of the thoracic spine to assess any objective worsening to
correlate with his subjective complaints of worsening.
However, the October 1998 x-rays of the were unchanged when
compared to the November 1997 and 1994 x-rays. The final
diagnosis was a stable T7 compression fracture with no other
objective findings or radicular complaints.
In a December 1999 statement, the representative contended
that the current evaluation did not reflect the severity of
social and industrial limitation resulting from the veteran's
condition. The representative asserted that limitation of
motion of the dorsal spine warranted a 10 percent evaluation
and that a demonstrable deformity of the vertebral body
justified an additional 10 percent. The January 2000
appellant's brief contended that additionally disabling
functional loss and weakness due to pain further supported an
increased rating.
Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R.
Part 4 (1999). The percentage ratings contained in the
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and the residual conditions in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the
disability evaluation, the VA has a duty to acknowledge and
consider all regulations which are potentially applicable
based upon the assertions and issues raised in the record and
to explain the reasons and bases for its conclusion.
Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
Regulations require the evaluation of the complete medical
history of the veteran's condition. 38 C.F.R. §§ 4.1, 4.2
(1999). However, where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, the present level of disability is of
primary concern. Although a rating specialist is directed to
review the recorded history of a disability to make a more
accurate evaluation, regulations do not give past medical
reports precedence over current findings. 38 C.F.R. § 4.2;
Francisco v. Brown, 7 Vet. App. 55 (1994).
Arthritis due to trauma, substantiated by x-ray findings, is
evaluated under the criteria of Diagnostic Code 5010, which
states: Rate as degenerative arthritis. 38 C.F.R. § 4.71a,
Diagnostic Code 5010 (1999). Degenerative arthritis
(hypertrophic or osteoarthritis) is evaluated under the
criteria of Diagnostic Code 5003. Degenerative arthritis
established by x-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved (DC 5200, etc.).
When, however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 pct is for application for
each such major joint or group of minor joints affected by
limitation of motion, to be combined, not added under
diagnostic code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion, rate as below: With x-ray
evidence of involvement of 2 or more major joints or 2 or
more minor join groups, with occasional incapacitating
exacerbations, the veteran is entitled to a 20 percent
rating. With x-ray evidence of involvement of 2 or more
major joints or 2 or more minor joint groups, the veteran is
entitled to a 10 percent rating. Note (1): The 20 percent
and 10 percent ratings based on x-ray findings, above, will
not be combined with ratings based on limitation of motion.
Note (2): The 20 percent and 10 percent ratings based on x-
ray findings, above, will not be utilized in rating
conditions listed under diagnostic codes 5013 to 5024,
inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999).
The residuals of the compression fracture of the T7 vertebra
will be evaluated under the criteria of Diagnostic Code 5285.
Residuals with cord involvement, bedridden, or requiring long
leg braces are entitled to a 100 evaluation. Consider
special monthly compensation with lesser involvements rated
for limited motion and nerve paralysis. Residuals without
cord involvement, abnormal mobility requiring neck brace
(jury mast), are entitled to a 60 percent evaluation. In
other cases, rate in accordance with definite limited motion
or muscle spasm, adding 10 percent for demonstrable deformity
of vertebral body. 38 C.F.R. § 4.71a, Diagnostic Code 5285
(1999).
Slight limitation of motion of the dorsal spine is rated as
noncompensable, and moderate or severe limitation of motion
is rated as 10 percent disabling. 38 C.F.R. § 4.71a,
Diagnostic Code 5291 (1999).
Where evaluation is based on limitation of motion, the
question of whether functional loss and pain are additionally
disabling must be considered. 38 C.F.R. §§ 4.40, 4.45, 4.59
(1999); DeLuca v. Brown, 8 Vet. App. 202 (1995). Regulations
contemplate inquiry into whether there is crepitation, less
or more movement than normal, weakened movement, excess
fatigability, incoordination and impaired ability to execute
skilled movement smoothly, pain on movement, and swelling,
deformity, or atrophy of disuse. Instability of station,
disturbance of locomotion, and interference with sitting,
standing, and weight-bearing are also related considerations.
Id.
When there is a question as to which of two evaluations shall
be applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
Analysis
The March 1994 claim for an increased rating is well grounded
because the veteran asserted that his back pain has worsened
and that he is more limited from performing daily activities.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78
(1990). A veteran's assertion that the disability has
worsened serves to render the claim well grounded. Proscelle
v. Derwinski, 2 Vet. App. 629 (1992).
An increased rating is warranted for residuals of a
compression fracture of the T7 vertebra, currently 10 percent
disabling, under the criteria of 38 C.F.R. § 4.71a,
Diagnostic Codes 5003, 5010, 5285 and 5291.
A 10 percent rating continues to be warranted under the
criteria of Diagnostic Codes 5003, 5010, and 5291. The mild
secondary degenerative changes shown on the November 1997 and
October 1998 x-rays of the thoracic spine were rated on the
basis of limitation of motion under the criteria of
Diagnostic Code 5291. The November 1997 examination revealed
forward flexion of 20-25 degrees, and the October 1998
examination revealed extension of 17-23 degrees, left lateral
flexion of 10 degrees, right lateral flexion of 12 degrees,
and rotation of 15-18 degrees. The November 1997 examiner
noted that these movements caused increased pain in the
dorsal spine, and the October 1998 examiner noted that the
veteran stated that touching his toes was impossible. Thus,
limitation of range of flexion, left lateral, and right
lateral motions were severe, and limitation of range of
extension motion was moderate. Consistently, the May 1996
rating decision increased the disability rating to the
maximum 10 percent for moderate or severe loss of range of
motion of the thoracic spine under Diagnostic Code 5291. A
discussion of additionally disabling functional loss and pain
could not have resulted in a higher rating than the 10
percent maximum. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999);
DeLuca v. Brown, 8 Vet. App. 202 (1995).
Initially, a 60 percent evaluation was not warranted under
the criteria of Diagnostic Code 5285 because the medical
evidence did not show spinal cord involvement or abnormal
mobility requiring a neck brace. In December 1994,
neurologic examination showed that the upper extremities and
deep tendon reflexes were present in all areas. In October
1998, x-rays showed no radicular component, and objectively,
the veteran had normal strength of 5/5 power in his lower
extremities and 5/5 power in the upper extremities. The
veteran did not have abnormal mobility requiring a neck brace
because, in October 1998, the veteran denied use of a brace
except for the acute period after the 1984 injury. Although
the veteran complained of constant back pain, the medical
evidence did not show use of a brace since 1984. In November
1997, he had a normal carriage, gait, and posture, and he
could sit and rise from a chair without difficulty. Further,
in October 1998, the veteran was mobile because he used a
treadmill, climbed stairs, sat upright on the examination
table, and achieved a recumbent position, all without
difficulty. Moreover, he was mobile enough to watch his two
small children, then ages 2 and 3, on a daily basis.
Nonetheless, assignment of an additional 10 percent rating is
warranted under the criteria of Diagnostic Code 5285 because
the evidence showed a demonstrable deformity of the vertebral
body. The compression fracture was prominent in the October
1994 x-ray, and the November 1997 and October 1998 x-rays of
the T7 area of the thoracic spine showed an anterior wedge
with some degenerative changes.
Finally, the veteran contended that he could not work in the
construction and trucking industries due to his service-
connected disability. Nonetheless, extraschedular
considerations do not apply because exceptional circumstances
have not been demonstrated. See Smallwood v. Brown, 10 Vet.
App. 93, 97-98 (1997); 38 C.F.R. § 3.321(b)(1999). The
veteran was observed to have a normal carriage, gait, and
posture in November 1997, and he was able to sit and rise
from a sitting position without difficulty in November 1997
and October 1998. Thus, the evidence does not show that the
service-connected disability would markedly interfere with
substantially gainful employment in an occupation outside the
construction or trucking industries. The service-connected
disability has not caused frequent hospitalizations.
Accordingly, referral for consideration of an extraschedular
rating is not warranted.
ORDER
Entitlement to a 20 percent evaluation for residuals of a
compression fracture of the T7 vertebra is granted, subject
to the controlling laws and regulations governing the payment
of monetary awards.
V. L. Jordan
Member, Board of Veterans' Appeals